On 26 July 2017, the Supreme Court gave its decision that the regime of employment tribunal fees was unlawful because it prevented access to justice. As a result, Employment Tribunals across the UK immediately stopped accepting fees for presenting claims for unfair dismissal and other employment-related issues, while the government is responsible for refunding all fees that have already paid by claimants since 2013.
Finally, on 15 November 2017, the UK government rolled out its scheme by which claimants were able to recover Employment Tribunal fees. Subsequently, claimants are able to apply for refunds using the scheme online or by post/email.
Further, the MoJ has recently published the Statistics for Employment Tribunal Fee Refund, which show that 2,660 of the 4,689 refund applications received, have been processed. While more than 2,000 refund payments have already been made (worth £1,808,310), the MoJ has confirmed that the fee repayment will continue for up to two years.
Why were Employment Tribunal Fees Abolished?
The Supreme Court gave its ruling that the fees order was unlawful under both domestic and European Union law as it had the effect of denying access to justice to common people and made it disproportionately difficult for employees to enforce their employment rights. The Court gave the example of “substantial and sustained fall in claims” as proof of this.
Further, the Supreme Court found the Fees Order to be indirectly discriminatory. This was primarily because a greater number of females were bringing more expensive Type B claims (including claims of sex discrimination).
Which Fees Will Be Refunded?
Both claimants and respondents will be able to claim a refund of the fees paid to either the employment tribunals or the Employment Appeal Tribunal (EAT). This refund will include:
- Claimant issue fees (£160 or £250) to present a claim;
- Claimant hearing fees (£230 or £950);
- Respondent fees (£600 for judicial mediation or £160 for an employment contract claim)
Refunds for Past Claims Rejected or Never Brought Due To Fees
If your claim was rejected earlier or dismissed, yet you wish to recover the fees, you may apply for the refund in the same way as others. You are eligible to receive a full refund if you had paid the fees either at an Employment Tribunal or Employment Appeals Tribunal (EAT) between 29 July 2013 and 26 July 2017.
How to File the Claim for Refund of fees
Claimants who had paid an Employment Tribunal (or an Employment Appeal Tribunal) fee can submit the claims for refund by filling out their claim at employmenttribunals.service.gov.uk
You can also use one of the following pdf forms to submit your claim via email:
Refund Form 1C
This form is available on justice.gov.uk and is for claimants who filed the employment tribunal claim individually, for example – an employee who presented a claim against their employer. (At the time of writing, the Form Title on the webpage says ‘Application for refund of Employment Tribunal fees form for respondents’, but if you click through to the pdf you’ll see that’s wrong, it’s for claimants.)
nd Form 2R
This form is for the respondent in an employment tribunal claim, for example – an employer who had a tribunal claim brought against themselves.
Refund Form 3S
Along with the refund forms 1C and 2R, this form is available on the website – justice.gov.uk
Individuals who acted as representatives or sponsors of either party to an employment tribunal claim and lead claimants (in more than one claim) need to fill out this form.
Extensions of Time
According to the Her Majesty’s Courts and Tribunal Service, approximately 7,500 cases were rejected for non-payment of fees during the period between July 2013 (when the tribunal fees were introduced) and July 2017 (when they were abolished).
These claims will now be considered as if they had not been rejected earlier and those affected can submit a new ET1 claim form. Historical claims that were not made in the first place because of the claimant’s inability to pay tribunal fees, however, will have to depend on the Employment Tribunal’s decision whether it was reasonably practicable for the claimant to have submitted the claim in time.
Leading no win no fee employment solicitors believe that the abolition of employment tribunal fees has brought the legislation back to the situation before 29 July 2013, as there is a rapid increase in the number of individual employment tribunal claims now being registered. While it is a welcome step to discontinue the payment of tribunal fees, the decision will put an additional burden on the employment tribunal system itself to deal with the increasing backlog of claims.
Looking at this from an employer’s perspective, it means that they must implement good policies and procedures within the workplace. They should also seek to follow the appropriate disciplinary and dismissal procedure before dismissing an employee. Together, this will help them avoid any unwanted employment claims.